Citation Nr: 0623282
Decision Date: 08/04/06 Archive Date: 08/15/06
DOCKET NO. 04-06 903 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office
in St. Paul, Minnesota
THE ISSUE
Entitlement to separate compensable evaluations for service-
connected tinnitus, each ear.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
S. Yim, Associate Counsel
INTRODUCTION
The veteran served on active duty from June 1982 to October
1986.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a January 2003 rating decision of the Department
of Veterans Affairs Regional Office (RO) in St. Paul,
Minnesota.
FINDING OF FACT
Service-connected (bilateral) tinnitus is assigned a single
10 percent rating, the maximum authorized rating.
CONCLUSION OF LAW
The law does not permit assignment of a schedular rating
higher than 10 percent for bilateral tinnitus. 38 U.S.C.A. §
1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260
(2005); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006).
REASONS AND BASES FOR FINDING AND CONCLUSION
In November 1993, the RO granted service connection for
tinnitus and assigned a 10 percent rating therefor, effective
October 29, 1992. In January 2003, the veteran filed a claim
of entitlement to two separate compensable ratings for
tinnitus, for each ear. The RO denied that claim in January
2003 because 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 does
not permit separate 10 percent ratings for tinnitus for each
ear. DC 6260, as revised effective June 13, 2003, clarified
existing VA practice that only a single 10 percent rating is
assigned for tinnitus, whether the sound is perceived in one
ear, both ears, or in the head. See 38 C.F.R. § 4.87,
Diagnostic Code 6260, Note (2) (2005).
In Smith v. Nicholson, 19 Vet. App. 63, 78, (2005), the U.S.
Court of Appeals for Veterans Claims (Court) held that pre-
1999 and pre-June 13, 2003 versions of DC 6260 required the
assignment of dual ratings for bilateral tinnitus. VA
appealed this decision to the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) and stayed the adjudication
of tinnitus cases affected by Smith. In Smith v. Nicholson,
451 F.3d. 1344 (Fed. Cir. 2006), the Federal Circuit
concluded that the Court erred in not deferring to VA
interpretation of its own regulations, 38 C.F.R. § 4.25(b)
and DC 6260, which permits only a single 10 percent rating
for tinnitus, whether unilateral or bilateral. Subsequently,
VA lifted its stay of adjudication of pending tinnitus rating
cases.
In this case, tinnitus is assigned the maximum permissible
schedular rating of 10 percent under DC 6260. As there is no
legal basis upon which to award separate schedular
evaluations for tinnitus in each ear, the appeal must be
denied. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Laws
and regulations governing VA's duties to notify and assist
have no effect on an appeal where, as here, the law, and not
underlying facts or development of facts, is dispositive.
See Manning v. Principi, 16 Vet. App. 534, 542-543 (2002).
ORDER
Separate compensable ratings for bilateral tinnitus, each
ear, are denied.
____________________________________________
MARY GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs